Appeal from the District Court for Sarpy County: DAVID K. ARTERBURN, Judge.
Bilal A. Khaleeq and Daniel S. Reeker, of Khaleeq Law Firm, L.L.C., for appellant.
Jon Bruning, Attorney General, and Nathan A. Liss for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ. CASSEL, J., concurring. CONNOLLY, J., dissenting. HEAVICAN, C.J., joins in this dissent.
[288 Neb. 715] Wright, J.
NATURE OF CASE
In 2013, Francisco C. Rodriguez moved to withdraw his guilty plea and to vacate his 2004 conviction for attempted possession of a controlled substance, a Class I misdemeanor. He alleged that before entering a guilty plea in the 2004 proceedings, he did not receive the proper advisement under Neb. Rev. Stat. § 29-1819.02(1) (Reissue 2008), and that he currently faced immigration consequences from the resulting conviction.
Because Rodriguez moved to withdraw his plea after he had completed his sentence of 2 years' probation, the district [288 Neb. 716] court concluded that it did not have subject matter jurisdiction. We conclude that the court did have jurisdiction, and we reverse the judgment and remand the cause for further proceedings.
SCOPE OF REVIEW
Subject matter jurisdiction is a question of law for the court, which requires an appellate court to reach a conclusion independent of the lower court's decision. State v. Clark, 278 Neb. 557, 772 N.W.2d 559 (2009).
In January 2004, Rodriguez was charged by information with possession of a controlled substance. As a result of a plea agreement, the charge was reduced to attempted possession of a controlled substance, a Class I misdemeanor under Neb. Rev. Stat. § § 28-201(4)(e) (Cum. Supp. 2004) and 28-416(3) (Supp. 2003), and Rodriguez agreed to enter a plea of guilty.
On March 23, 2004, Rodriguez appeared before the district court and received the following advisement about the immigration consequences of a guilty plea:
But in addition to that, if a plea . . . is entered to a felony, besides the maximum sentence, there are indirect consequences that will follow you the rest of your life. . . . If you are not a United States citizen, a plea of guilty may subject you -- to a felony may subject you to deportation. There are any other number of those indirect consequences that may occur if you plead guilty to a felony.
After the advisement, Rodriguez entered a plea of guilty. The court accepted the plea, adjudged Rodriguez guilty, and sentenced him to 2 years' probation.
In February 2013, Rodriguez moved to withdraw his guilty plea and to vacate his conviction for attempted possession of a controlled substance. He alleged that he had not been properly advised of the immigration
consequences of a guilty plea, as required by § 29-1819.02(1), and that he had " recently [288 Neb. 717] discovered the immigration consequences of his plea when [i]mmigration authorities took him into custody." The record does not reflect that the State raised any affirmative defenses in answer to Rodriguez' motion.
The district court concluded it did not have jurisdiction, because Rodriguez filed his motion after his sentence had been completed. It distinguished the case at bar from State v. Yos-Chiguil, 278 Neb. 591, 772 N.W.2d 574 (2009), and instead relied upon State v. Rodriguez-Torres, 275 Neb. 363, 746 N.W.2d 686 (2008). The court explained:
[T]he Supreme Court in Yos-Chiguil did not overrule the holding of Rodriguez-Torres. The Court is, therefore, left with strong language from Rodriguez-Torres which states that Sec. 29-1819.02 " does not convey upon a court jurisdiction" to vacate a judgment or withdraw a plea " where a party has already completed his or her sentence." Therefore, the Court can only conclude that the language of Rodriguez-Torres controls the present case. Consequently, the Court must find that [Rodriguez'] motion fails and must be overruled for lack of jurisdiction. It appears to this Court that had the Supreme Court in Yos-Chiguil found that the language of the statute clearly authorized relief beyond the end of a defendant's sentence, it would have said so. The Court declined to do so. Therefore, while there is an apparent discrepancy between the two cases, this Court must follow the clear precedent that exists and leave it to the appellate courts to resolve the inconsistency.
Rodriguez timely appeals. We moved the case to our docket pursuant to our statutory authority to regulate the dockets of the appellate courts of this state and ordered oral argument. See, Neb. Rev. Stat. § 24-1106(3) (Reissue 2008); Neb. Ct. R. App. P. § 2-111(E)(5)(a) (rev. 2008).
ASSIGNMENT OF ERROR
Rodriguez assigns, restated, that the district court erred in dismissing for lack of jurisdiction his motion to withdraw his guilty plea and vacate his conviction.
[288 Neb. 718] ANALYSIS
Jurisdiction Under § 29-1819.02
Rodriguez argues that the district court had jurisdiction under § 29-1819.02 to consider the motion to withdraw his guilty plea and to vacate his conviction. We set forth the relevant provisions of § 29-1819.02:
(1) Prior to acceptance of a plea of guilty . . . to any offense punishable as a crime under state law, except . . . infractions . . . the court shall administer the ...